TRILOKEE PRASAD VERMA Vs. STATE OF BIHAR

JUDGEMENT

(1.) Petitioner has filed this application for a direction to pay pension, gratuity and unutilised leave encashment amount calculating on the basis of last pay drawn. His further prayer is for quashing.

(2.) Petitioner was appointed vide letter No. 2371 dated 12.6.1967 as correspondence clerk in the office of Superintending Engineer, South Bhagalpur Construction Circle, Bhagalpur in the pay scale of Rs. 105-155/-. Petitioner passed Hindi nothing and drafting examination as well as accounts examination. He was transferred to the office of Superintending Engineer (Mechanical), Muzaffarpur, where he joined on 6.4.1968. He was promoted to the post of Head Clerk in the scale of Rs. 340-490/- with effect from 12.10.1973 by the Chief Engineer (Mech.), State Tubewell, Bihar, Patna, vide letter No. 204 dated 19.1.1974. Subsequently, entire organisation of State Tubewell of Bihar with it's staff including the service of the petitioner vested in Bihar Water Development Corporation duly constructed by the Government with effect from 1.2.1974 vide Government order No. 844 dated 28.2.1974. The service of the petitioner and other staffs were vested in the Bihar Water Development Corporation with clear stipulation that service conditions, such as, salary, promotion, pensionary benefits as well as inter se seniority of the staff transferred will continue to be the same. Thereafter, the scale of the petitioner was revised as per 3rd Pay Revision in the scale of Rs. 284-372/- with effect from 1.1.1971. Petitioner was transferred to Tubewell Division, Darbhanga, as Head Clerk vide letter No. 1047 dated 27.12.1983 where he joined on 7.3.1984. The Under Secretary, Government of Finance Department (Pay Fixation Section), Bihar, Patna, on 17.12.1985 approved the pay scale fixation of the petitioner on 1.1.1971 at Rs. 302 and also on 1.4.1981 at Rs. 890/- giving revised scale of Rs. 680/- to 965/- from existing scale of Rs. 340-490/-. In the meantime on requisition, the service of the petitioner along with several staff were placed provisionally on temporary basis in the newly created Provident Fund Directorate under Finance Department, Bihar, Patna, as Junior Selection Grade Clerk in the scale of Rs. 680-965/- vide memo No. 1832 dated 10.3.1986 issued by the Finance Department under the signature of Additional Secretary, Finance (Provident Fund Directorate) Department, Bihar, Patna. Petitioner and several other staff joined at Provident Fund Directorate, Bihar Patna on 15.3.1996 and after due training he again joined on 6.5.1986 at District Provident Fund Office, Muzaffarpur. In the meantime, pursuant to Government decision, in terms of notification issued by the Minor Irrigation Department contained in memo No. 4648/4649 dated 13.8.1986, Tubewell Project has been created in the Minor Irrigation Department and the management of offices and staff of Bihar Water Development Corporation substantially transferred to the said Tubewell Project. The Executive Engineer, Tubewell Division, Darbhanga, vide letter No. 745 dated 10.7.1987 revised and fixed pay scale of petitioner at Rs. 960/-in the scale off Rs. 730/- 1080/- on 1.3.1986. Thereafter, the Superintending Engineer, Tubewell Circle, Muzaffarpur, vide letter No. 64 dated 20.1.1988 revised the scale and promoted the petitioner along with various other persons in the scale of Senior Selection Grade/Time bound giving the scale of Rs. 730/- 1080/- with effect from 1.4.1981 and scale of Rs. 850-1360/- with effect from 1.3.1986 respectively. The Project Coordinator, Tubewell Project, Bihar, vide letter dated 8.6.1988 cancelled all promotions/time bound scale dated 20.1.1988 on the ground that the petitioner and others are no more in the Minor Irrigation Department. Challenging this order of cancellation of promotion dated 8.6.1988, several writ applications including C.W.J.C. No. 6298 of 1988, Sudhakar Prasad Singh v. B.S. Water Dev. Corporation and Ors., was filed. This application was disposed of on 5.4.1989 quashing the letter of cancellation of promotion dated 8.6.1988 holding therein that Parent Department of petitioner is Minor Irrigation Department which is only authorised and entitled to grant promotion/promotional scale. Petitioner had also challenged this order by filing C.W.J.C. No. 5826 of 1988 which was disposed of in terms of the order passed in C.W.J.C. No. 6298 of 1988. After the order passed by the Hon'ble Court the Managing Director, Bihar Water Development Corporation and Minor Irrigation Department vide order contained in memo No. 468 dated 26.4.1990 primarily gave promotion to the petitioner along with several others to the post of Senior Selection Grade Head Clerk with effect from 1.4.1981 in the unrevised scale of Rs. 850-1360/- and to the post of Supertime Selection Grade Head Clerk with effect from dated 26.4.1990 pay fixation statement dated 19.5.1990 was made in the respective revised scale of Rs. 850-1360 and 880-1510 i.e. in the scale of Rs. 1640-2900 fixing Rs. 2240 on 1.4.1986 and in the scale of Rs. 1800-3300/- fixing Rs. 2430/- on 1,4.1986 and it was counter-signed, sealed and approved by the District Accounts Officer, Muzaffarpur. The Provident Fund Directorate, Patna, vide its office order contained in letter No. 25 dated 2.7.1991 accepted the promotion given to the petitioner in the Senior Selection Grade Head Clerk and Supertime Senior Selection Grade Head Clerk in the scale of Rs. 850-1360 and Rs. 880-1510/- respectively and implemented the same. Provident Fund Directorate also accepted that the parent department of the employees including the petitioner 5 is Minor Irrigation Department and last payment certificate issued from Bihar Water Development Corporation shall be deemed to have been revised to that extent which has been accepted and implemented by the District Provident Fund Officer, Muzaffarpur. The payment was also made to the petitioner in these very terms. The fixation of pay scale of the petitioner in pursuance of Finance Department Resolution No. 660 (F-2) dated 8.2.1989 was also approved, counter-signed and sealed by Pay Fixation Section of Finance Department and accordingly, payment was made to the petitioner regularly. The Director, Provident Fund Directorate, Patna, vide office order No. 103 dated 27.9.2000 ordered to fix pay scale of Head Clerks mentioned therein including petitioner in the scale of Rs. 4,500-7,000/- against which the petitioner made representation to the Director aforesaid on 11.10.2000 praying therein not to reduce pay scale of petitioner from 5,500-9,000/- to Rs. 4,500-7,000/-. Letter dated 27.9.2000 kept in abeyance with the petitioner vide his representation and the petitioner continued to receive salary in the scale of Rs. 5,500-9,000/-.

(3.) Petitioner was going to retire in the month of August, 2003 and as such he submitted all reasonable papers before the District Provident Fund Officer, Muzaffarpur, on 11.7.2003 for his retiral dues in anticipation of his retirement. Petitioner retired while getting salary in the scale of Rs. 5,500-9,000/-. After petitioner's retirement on 30.8.2003 some of the retiral dues like group insurance amount and general provident fund amount was sanctioned and paid to the petitioner. On 1.10.2003 the District Provident Fund Officer, Muzaffarpur, issued two antidated letters vide letter No. 2347 and letter No. 268 both dated 30.8.2003 (Annexure-14 and 15) whereby pay scale of the petitioner was refixed in the scale of Rs. 4,500-7,000/- reducing from Rs. 5,500-9,000/- with effect from 1.1.1996. Petitioner represented to the respondents raising his grievances but nothing positive was done. Thereafter, again letter No. 2676 and 2679 both dated 18.10.2003 were issued by the District Provident Fund Officer, Muzaffarpur, whereby third time pay scale of the petitioner was reduced and revised. This time with effect from 1.1.1981 correcting the earlier letter No. 268 dated 30.8.2003 whereby the reduction was made with effect from 1.1.1996. By this letter Accountant General, Bihar, Patna, was asked to calculate the recover the excess payment at its level from the amount of petitioner's gratuity and pension. The letters reducing the pay scale of the petitioner and a direction to recover the excess payment from the gratuity and pension of the petitioner were issued without giving any notice or show cause.